The BCRA Assault on the First Amendment

The Founding Fathers were always profound, but not always right. How could they be? They often disagreed with each other. The Federalist Papers were a series of newspaper articles by Alexander Hamilton, James Madison, and John Jay intended to persuade fellow citizens of the wisdom of adopting the proposed new constitution. One of the concerns was that the original document did not include a bill of rights. This deficiency was alleviated by the first ten amendments, the Bill of Rights, adopted shortly after the adoption of the Constitution.In his defense of the original document, Alexander Hamilton in Federalist 84 noted that some protections, like the writ of habeas corpus were already in the Constitution. However, Hamilton argued that constitutions as a rule were too general to contain a specific enumeration of rights. He feared that such an enumeration might “even be dangerous.” A failure to enumerate a particular right might suggest it did not exist. Fortunately, Hamilton’s position did not ultimately prevail or who knows what predations ever expanding governments might have visited upon us.

While some fret over additional powers to pursue terrorists that may be granted to the government under the Patriot Act, many seem to neglect a concerted government attempt to limit political speech. The Bi-partisan Campaign Reform Act (BCRA) represents just such an effort. It appears from this vantage point that this threat is greater than any posed by the Patriot Act. After all, if we can maintain free political speech, we at least have the opportunity to remedy other problems that may crop up from time to time.

Presently, the BCRA is working its way through the courts in the case of McConnell v. FEC. There is particular doubt as to the constitutionality of the Snowe-Jeffords Amendment to the BCRA. The provision prohibits companies, labor unions, and non-profit advocacy organizations from broadcasting messages that mention a political candidate within 60 days of a general election. The National Abortion Rights League is prohibited from running a television ad that says “Vote for candidate Smith because he supports abortion rights.” The National Rifle Association may not run an analogous ad in support of a candidate sympathetic to its views.

One of the criteria courts use to assess the constitutionality of a law is “overbreadth analysis.” Is the BCRA so broad that it might inevitably infringe on constitutionally protected speech? Would a provision that bars electioneering ads also prevent the expressions of ideas? Laying aside for the moment the critical issue of whether even ads that mention candidates made by organizations independent of the candidates or parties should enjoy First Amendment protection, the appeals court wanted to quantify the potential empirical effect of the BCRA. David Tell for the Weekly Standard has examined whether intellectually dishonest approaches were used to push forward the case for reform in making this empirical determination.

Political scientist Kenneth Goldstein of Arizona State University assembled a database from 1998 election year broadcast ads. Students were enlisted to watch and listen to broadcast ads and decide whether the ad was primarily electioneering or issue advocacy. This database was then analyzed by the Brennan Center for Justice of New York University “not simply to advance knowledge for its own sake, but to fuel a continuous multi-faceted campaign to propel campaign finance reform forward.” This certainly sounds like science recruited in the service of a political agenda. While it is possible for a passionate advocate to conduct a dispassionate inquiry, it requires a careful donning of the robes of scientific neutrality. Tell’s investigation of the Brennan Center’s use of the Goldstein database suggests that the Brennan Center not only neglected to wear those robes, but is streaking in only a pair of sneakers through the campaign finance reform debate.

Josuha Rosenkranz, President of the Brennan Center, has testified to the Senate that if the BCRA had been effect in 1998, analysis of the Goldstein database indicates that only 7 percent of issue ads would have been unfairly prohibited from broadcast. Other investigators have looked at the same data and found that likely 40 percent of issue advocacy ads would have been suppressed.

James Gibson, of Washington University, may have located Rosenkranz’s error. Gibson was able to replicate the 7 percent number only by making an incorrect calculation. As Tell explains it, “The numerator was the expected one: genuine issue oriented-ad broadcasts that the Snowe-Jeffords 60-day blackout would have unfairly swallowed up. But the denominator was an apples-and-oranges anomaly: all issue-ad broadcasts of the entire calendar year.” There are now even questions of whether the Goldstein database has been improperly altered. Time will likely prove if the broken dam of enthusiasm for campaign finance reform washed away the scientific integrity of the Brennan Center.

For our purposes here, let us assume for now that the Brennan Center was absolutely correct. Let us assume they made no errors unintentional or otherwise. Assume that only 7 percent of legitimate issue-oriented ads, political speech in its pristine form, would be suppressed under BCRA. Should we accept such a First Amendment restriction? By analogy, would we allow the government to engage in what is now considered “unreasonable” search and seizure if only 7 percent of those convicted were actually innocent? After all that would make it easier for the state to prosecute the guilty? Would we welcome a 7 percent conviction error rate for the cost savings of not having to provide counsel to the accused? I should think not. Freedoms and rights can be whittled down to nothing in increments of a few percent at a time.

The First Amendment is direct and terse. “Congress shall make no law … abridging the freedom of speech…” By contrast, the BCRA is complex and unwieldy. It takes many miles of creative intellectual thread to weave a shroud dense enough to shield the brilliance of the First Amendment. The BCRA represents a far graver to threat our freedoms than is commonly assumed.

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